an equality of taxation, and to enable every one to know for what polls, and for what real and personal estate he is taxed, are conditions precedent, and if they are not observed, he is not legally taxed; but many regulations are made by statute, designed for the information of assessors and officers, and intended to promote method, system, and uniformity, in the mode of proceeding, the compliance or non-compliance with which does, in no respect, affect the rights of tax-paying citizens; these may be regarded as directory. Officers may be liable to legal animadversion, perhaps to punishment, for not observing them, but yet their observance is not a condition. precedent to the validity of the tax." The Vermont rules upon this subject are thus laid down in Chandler v. Spear: 1 "The following principles, or rules for testing the validity of tax titles, appear to be fairly deducible from the reported cases on that subject: 1. Where the statute, under which the sale is made, directs a thing to be done, or prescribes the form, time, and manner of doing anything, such thing must be done, and in the form, time, and manner prescribed, or the title is invalid; and in this respect the statute must be strictly, if not literally, complied with. 2. But in determining what is required to be done, the statute must receive a reasonable construction; and when no particular form or manner of doing a thing is pointed out, any mode which effects the object, with reasonable certainty, is sufficient; and in judging of these matters, the court is to be governed by such rational rules of construction as direct them in other cases." And in Spear v. Ditty, Judge Phelps remarks: "Great nicety has prevailed in relation to these titles; and in cases of doubt the inverted maxim seems to have obtained, ut res magis pereat quam valeat. They are said to be stricti juris - a proceeding in invitum, &c. This is true. Still, some degree of reason and sense is to be exercised in determining what right is; and although there may be no equitable consideration to aid such title, still every 1 22 Vermont, 388. statute should have a rational interpretation, and a reasonable effect. We ought not to discard those aids which guide us in other cases; nor by an unreasonable and senseless nicety, defeat a solemn act of the legislature. It is, however, admitted, that in interpreting these statutes, we should consider the title to be acquired under them as stricti juris, and should require a full and complete compliance with the requisitions of the statute. Before the title of the owner is divested by such a proceeding, we should insist upon every thing tending to the security of the owner, which is either prescribed by the terms of the act brought within it by a rational and strict construction — or which, in the nature of the transaction, is necessary to give ample effect to every safeguard which the legislature have endeavored to throw around the subject. But it is not our duty to legislate to create artificial and unreasonable difficulties; nor by over-nice and unmeaning technicality, without any rational purpose, to convert the proceeding into an idle ceremony." This seems to be the safer and most equitable rule to adopt ; a requirement which tends to the security of the owner, or which possesses the semblance of benefit to him, should be faithfully complied with; while those which possess no intrinsic merit, and the omission of which works no manner of injury to the owner of the estate, ought not to defeat the title of the purchaser. Such seems to be the true principle to be deduced. from the decided cases, if it be once conceded that any provision of a statute may, under any circumstances, be regarded as directory. The application of that principle to the facts of each particular case, are shown in those parts of this work which treat of the different requirements; the design of this chapter being simply, to lay before the profession those general rules, which seem to aid in the investigation of questions of this nature. 23 CHAPTER XV. OF THE SALE OF THE LAND. THE general principles relative to the power of sale have already been fully explained. It has been shown, that the authority of the officer to sell depends upon the regularity of the anterior proceedings, and in most instances, upon a special precept authorizing him to proceed; and it has also been shown, that where the sale is conducted by the wrong officer or person, or where the proper officer makes the sale before his power attaches in point of time, or where he exercises the power after it has become functus officio, the sale is void.2 But there are important details connected with the auction itself, and the duties of the officer intrusted with the conduct of it, which constitute the subject-matter of this chapter. 1. The sale must be a public, and not a private one.3 The object of the law is to secure a fair competition at the biddings. If a secret sale could be sustained, the policy of the legislature would be defeated in this respect. No statute is remembered which does not, either in express terms, or by necessary implication, require the sale to be at public vendue.. A sale made in violation of the letter or policy of the law, in this particular, is void. 1 See Scott v. Babcock, 3 G. Greene (Iowa), 133, that by the law of Iowa, of 1844, lands were not subject to sale, unless the taxes had been due and unpaid for three years; qualifying the case of Noble v. The State, 1 G. Greene, 225. 2 Ante, Chapter 2, p. 34; Chapter 3, p. 65; Chapter 13; Hughey v. Horrell, 2 Hammond, 231; Thompson v. Rogers, 4 Louisiana, 9; Usher v. Taft, 33 Maine, 199. 8 See Cutler v. Brockway, 8 Casey (Penn.), 45. In Keene v. Houghton,1 the statute required the collector to sell non-resident lands to the highest bidder, at public auction, after giving due notice, &c. The land in question was struck off to Isaac Tyler, for the taxes and costs, he being the highest bidder. Afterwards, and before the proceedings were returned and recorded, in pursuance of the statute, the defendant Houghton was substituted as a purchaser in lieu of Tyler; and the sale was so returned. A deed was executed and tendered by the collector to Houghton, which the latter refused to receive, because he was advised that the proceeding was illegal, that the collector had no authority to make the substitution. Keene, the collector, thereupon sued Houghton for the purchase money, and the court held that he was not entitled to recover. Shepley J.: "In the execution of a power given by statute, there must be a strict conformity to its provisions, or the proceedings will be ineffectual. The person authorized cannot adopt a different mode of proceeding, which he may judge would accomplish the same object in a different manner, and be more beneficial to those interested. The collector in this case is authorized to deed only to the highest bidder, that is, the person who would bid the highest price for the land by taking the least quantity of it, and pay the amount due; and he only could acquire a title to the land by such a sale; for a sale, not in conformity to the provisions of the statute, could not give a title. The bill of exceptions states that Isaac Tyler was the purchaser at the sale; and it does not appear that he refused to comply with the conditions of sale, or that he acted as the defendant's agent, or assented to the transfer of his bid to the defendant; and the plaintiff had no right to substitute the defendant for Tyler as the purchaser." In this case it appeared that the defendant was not present at the sale; if he had been there, and declined bidding, and afterwards, by agreement with Tyler and the collector, been substituted as purchaser, the transaction would have been a fraud upon the law, 119 Maine, 368. as its direct tendency would have been to destroy competition at the sale. 2. The sale must take place at the precise time fixed by the law, or notice, otherwise it will be void.1 The twenty-sixth section of the revenue law of Illinois, of February 26, 1839,2 contemplates a notice of the application for a judgment upon the delinquent list, and of the sale, in the same advertisement, and fixes the day of sale "on the second Monday next succeeding the said term of the said circuit court," at which the application is made, and in which the judgment is rendered; and the law further provides, "that it shall be the duty of the clerk, within five days after the adjournment of said court, to make out under the seal of said court, a copy of the collector's report, together with the order of the court thereon, which shall hereafter constitute the process on which all lands shall be sold for taxes, and deliver the same to the sheriff of his county; and the sheriff shall thereupon cause the said lands to be sold on the day specified in the notice, given by the collector, for the sale of the same, &c.; "3 and the statute further declares, that the deed of the sheriff shall be conclusive evidence" that the sale was conducted in the manner required by law." In the more populous counties of the State, the session of the court continued from two to six weeks; in the smaller counties the court did not sit longer than a week, and in some only for a few days. The question necessarily arose upon the construction of this statute, whether the words "second Monday next succeeding the term of the court," had relation to the first day of the term, or to the day of the adjournment of the court. In counties where the term of the court was fixed for one week only, it was immaterial which period of computation was adopted, as in either case the day of sale would be certainly 1 Ronkendorff v. Taylor, 4 Peters, 349; Conrad v. Darden, 4 Yerger, 307; Essington v. Neill, 21 Illinois, 139; Moore v. Brown, 11 Howard (U. S.), 414. See Noyes v. Haverhill, 11 Cushing, 338; Pierce v. Benjamin, 14 Pickering, 356. 2 Ante, pp. 193, 194. 8 Ante, p. 194, sec. 27. |